Zeran v. America Online

"In The Pursuit of Happiness" by Kenneth Michael Zeran

"Wired Magazine- The Case That Gave Us Today’s Toxic Internet” 


I am currently writing “Meta Morph Us”, a book about my important role in the development of digital technologies in media and how it helped usher a new way of seeing, hearing, reading, writing, thinking, and how it is affecting the contemporary human condition. I was in a unique position to straddle the digital divide escorting the world from analog to digital and it was fascinating to observe the response and what followed.

The book (and I hope you will be enticed to its release) is divided into chapters about each media form and my contributions to the digital transformation.

One of the chapters cannot wait for the book’s completion. History is knocking loudly on my door and demands that I deliver now- the chapter on ‘The Internet’. Of course I am referring to the part about Section 230 and how ‘Zeran vs. America Online’ gave us what countless media outlets refer to as “Today’s Internet” and created a trillion-dollar industry.

I do not spend my time glued to endless accounts that revolve in the media. It's a bit like life on the cutting edge in Manhattan- one does not turn to every siren. But those gathering sirens in today’s toxic world are louder and louder, and I am certainly aware. I am alarmingly aware of the misinformation and misinterpretations that abound in documents, broadcasts, and online discussions- from law schools to tabloids. This commentary is to provide you with an unvarnished and authentic knowledge of how my action brought about today’s emergency-‘The wreck of Section 230 – A Sanctioning of Irresponsibility’ and compromise of The First Amendment, resulting in an angry culture. Read carefully, as this is about how your life is changing.

Once upon a time, a massive explosion occurred on April 19th 1995 in Oklahoma City resulting in a great loss of life. An anonymous member of America Online posted a hoax- T-Shirts for sale with slogans meant to incite in the aftermath of, to then, the largest terrorist act in American history- the bombing of a Federal building and attributed them to my phone number and first name. The anonymous America Online member kept signing up new accounts for instant access, each without  AOL verification. AOL’s failure enabled the abuse. They never knew the identity of the culprit. The postings continued. The calls were voluminous with emotional expressions. I had no idea why they were calling me until a reporter from The Army Times called to verify what he saw as an obvious hoax. He said they were on AOL’s Bulletin Board. Of course I could not see them because I had never been a member of AOL and had no access. To me America Online was riding a bike with training wheels. And, of course, I never knew who did this. My colleagues are up the food chain from the nether world. I assume my business phone number was used because it was listed on thousands of real estate publications in 110 stores in the Greater Seattle area produced by one of my companies. Obviously, I notified AOL which was not helpful so I then contacted legal authorities. Contrary to what you just read, there persists conspiracy theories to this day looking for emotional stories- "It must have been so horrible" and "Who could have done this!" and other tabloidesque enticements. The truth is more vegetarian. For me, a media developer, it was all about a remedy for the pathetic failure of the new medium.  As it turned out April 19th, 1995 was not limited to just one massive explosion with many lives lost but led to another explosion- this one of existing law that would affect the lives of everyone to this day.

To have an accurate understanding one must fundamentally comprehend two things: 1- ‘Why’ I would initiate the ground breaking legal action, and 2- ‘How’ a noble effort would be defeated by well-intentioned but incredibly naive forces that would unwittingly create today’s unhappy society.

Why would I initiate what has turned out to be such a momentous action? Well, it is not what you have read elsewhere- that I was offended by some anonymous trolling twit. No, that is not the reason. The motive came from what you read in the beginning of this article. I have been a leader in new media. I premiered digital technology to the country on national television with CBS, changing the medium forever. Audio, as it is used on today's computers, began in my studios. My purpose has always been to inspire and propel what Thomas Jefferson penned in his first draft of the Declaration of Independence- ‘The Pursuit of Happiness’. As my own biography notes- “The purpose of my work, whether it be Fine Art or Electronic, is to surprise and captivate in delivering a new experience”. It has always been about enlightenment.

America was born during ‘The Age of Enlightenment’. It’s most cherished principle was laid down in the First Amendment to the Constitution- “Freedom of Speech” carved out by our forefathers, who valued the sanctity of free expression. They did not want to lose this sacred right to self-destruction. During the years that followed, as new forms of communication developed, thoughtful laws were enacted to ensure it would not be compromised by misuse.

So when the latest developing medium (the Internet) found itself vulnerable to easy abuse I knew this was not the pursuit of happiness. It is serendipitous that it was presented to myself, a digital medium pioneer. It needed to benefit from historical considerations and value.

As noted, media operated in accord with time honored law that had served the country well resulting in reliable information and civilized behavior in The Town Square. I studied media law at, what was to  become, The Edward R. Murrow College of Communications at Washington State University where I was nationally distinguished and knew the law about publishing and distributing libel and slander. So did every professional publisher in the United States. (It was also the economic foundation. One purchased a magazine or newspaper willing to believe the content was true.) Common Law held that a publisher could be held liable if it published untruthful material, especially if it was notified and took no remedial action. This also held true to distributors once notified.

That is the key to understanding why I initiated the infamous litigation. I was a media professional and knew the law, that I had been libeled and appropriately notified the publisher/distributor (AOL) and they had a duty to remove the material. They failed to act in a reasonable manner following multiple notices, contrary to what has been reported. To compound matters they had a ‘less than helpful’ attitude, which is what really prompted the litigation. The new medium needed to respect responsibility that goes with care for the First Amendment. So began the litigation that would end on the steps of The U.S Supreme Court, which as The New York Times stated, 'did not want to rule on the early development of a new technology'.

 ‘How could a noble effort to correct such a situation be defeated by well-intentioned but naive forces’?

A multitude of commentaries on the case have focused on legal syntax but have missed the BIG picture. Let's rewind. The BIG story was PORNOGRAPHY and fear of The Federal Government. That was the focus on Capitol Hill- lawmakers desperate to extinguish minor’s access to cyber porn without governmental control. This was a troubling problem because Congress lacked a fundamental awareness of computing capabilities. It was 1995. The Congressional Record loudly testifies to this reality. Driven to take action to find a way to remove porn, they froze in the headlights of case law. Paralyzed by Cubby v Compuserve and a decision in Stratton-Oakmont v Prodigy that held Prodigy liable as a publisher because it monitored content on its server. They hit the panic button by assuming the volume of content on a particular Internet service was too large to manage in maintaining traditional publisher responsibilities. The kind that had always kept America's information highways legitimate. Representatives Christopher Cox and Ron Wyden came up with a simple idea- remove liability altogether. All Internet users (including services) would automatically receive the 'Good Samaritan' safe haven of protection in removing offensive material. This over simplified idea was short-sided because it also gave protection for NOT REMOVING offensive material (including illegal material) whoops!.... Whoops!!....WHOOPS!!!.....There would no longer be any legal need to act. In their haste, driven by a fear of pornography, operating in a vacuum, they carelessly rolled over common law and created the twenty-six word dichotomy known as Section 230 which states- "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”.

Let's consider The Oxford dictionary's definition of "publisher"- "​ a person or company that prepares and prints books, magazines, newspapers or electronic products and makes them available to the public". Let's look at Facebook, for example. Facebook is a "company that prepares an electronic product and makes it available to the public". Facebook prepares it's product like publishers always have. It prints it across computer screens. Nobody else does. It relies on content provided by it's users which is controlled by Facebook's software. Logic says users are the "information content provider". One could parse the words "provider of an interactive computer service" to be the ISP, Internet Service Provider. Where does this leave Facebook, itself? Facebook is a publisher and distributor of it's own product. Nobody, in their right mind, would hold Facebook liable for content it did not create itself, nor would they be considered a speaker of it. But Facebook should have a duty, upon notice, to respond and take action that only it can take.

Wikipedia, the encyclopedia of the Internet shares this thought in noting: "Section 230 provides internet service providers safe harbors to operate as intermediaries of content without fear of being liable for that content as long as they take reasonable steps to delete or prevent access to that content."

Facebook generates what the user sees and is the only entity controlling, literally, everything on it's own server.  There must be some responsible authority. Facebook should be held to a "publisher" standard. What do you think?

According to Section 230, Wikipedia and this commentary, are wrong. Facebook cannot be 'treated' as a publisher. It does not have to remove any third party content. When you remove 'publisher' status, you remove responsibility altogether. Lawmakers, struggling with semantics in case law, simply decreed the word 'publisher' would be treated differently in the Internet context- contrary to the world's leading authority of the English language and Common Law. Where is Shakespeare and Chaucer? Would they say- "It depends on what the meaning of the word "is" is?

Unwittingly, Congress handed control of the First Amendment to businesses that would become monopolies.  The Communications Decency Act was signed into law by President Bill Clinton on February 8th, 1996 but did the lawmakers really know what they were doing?

A read of The Congressional Record reveals few people in Congress really knew much about computers in 1995 when the legislation was written.

Ironically, Christopher Cox, co-author of Sec 230— recently wrote he was “one of the aware few and someone who built his own computers and had been using the internet for years — took a serious interest in the issue. 

52% had no internet connection in the Senate. While a handful of members were conversant with “high tech,” as it was called, most were outright technophobes quite comfortable with the old ways of doing things. Only 26% of House members had an email address.

The final roll call on the Cox-Wyden amendment was 420 yeas, 4 nays.”

In the end, not a single Representative spoke against the bill. The Congressional Record makes it clear the proposed legislation was never vetted. Never went through a committee. No expert testimony. As noted, not a single Congressperson volunteered to question it on the floor. From The Congressional Record: “Mr. COX of California. Mr. Chairman, given that no Member has risen in opposition, would the Chair entertain a unanimous-consent request?”

They were dazzled, caught up in legal semantics and a lawyerly cure for Stratton-Oakmont v Prodigy. The fearful thinking assumed online platforms could not possibly monitor and filter so much content and would be reluctant to expose themselves to liability. They were thinking about an antiquated 'burden of monitoring and filtering third party content'. Such a burden was unrealistic and unnecessary. They should have removed those impediments and focus on the concept Response Based Upon Notice' – the very concern that has always motivated publishers- taking action, upon notification, of offensive/illegal material. The Internet would have continued to flourish but with responsibility. Instead, they simply eliminated publishers and created a recipe for a no-holds barred laissez faire tidal wave, and developed pathological attitudes of 'anything goes'.

How could such misguided thinking occur? Because, as Rep. Cox pointed out, they were ‘technophobes’. There was just one massive problem in this scenario. As well-intended as Christopher Cox and Ron Wyden may have been, they probably did not write server side computer code- how the Internet functions.  They never knew about a fact critical to the discussion that would have changed history.

A modest examination of how the Internet functions would have disclosed an obvious solution. It is built around something every computer user experiences – the search mechanism. The part the user does not see is the server side with programming known as a ‘regular expression code’. Here is a typical example searching for the word 'abracadabra' on a Unix server used in 1994 and today:

Faster than you can say “abracadabra”, endless results fill the screen. To the point, a System Administrator, has control over the server and can interrogate it instantly, unlike the user. Can pull up anything and instantly control it and ‘respond’ to a notice of offensive/illegal content. The server is the only place on earth or cloud that contains the original content and the owners are the only ones who have access. The common technology existed a long time before Congress had a clue.

So the ill-begotten legislation became law and the judiciary would effectively have its hands tied because of the sweeping and narrow provisions. But it too was blinded by the techno light and dazzled with naïve thinking.

‘Zeran v America Online’ was decided in the United States Court of Appeals for The Fourth Circuit and became, what NPR reported- "Scholars call the Zeran decision 'the Most Important Internet law ruling ever'." Or, what Wired Magazine referred to as “The Case That Gave Us Today’s Toxic Internet”.  This resulted from a failure to recognize the big mistake made by lawmakers for similar reasons- naivety about computer server capabilities. Analog thinking in misunderstanding digital reality in the first test of a flawed law.

The Fourth Circuit opinion was written by Chief Judge J. Harvie Wilkinson III and contains the evidence, written in his own words, proclaiming ‘dazzlement’ with the Internet. It would effectively blind him from making an informed opinion.

A few excerpts from Judge Wilkinson’s opinion should convince you of a misconception about the subject.

“The amount of information communicated via interactive computer services is therefore staggering”

“Although this might be feasible for the traditional print publisher, the sheer number of postings on interactive computer services would create an impossible burden in the Internet context.”

The idea that content is so vast as to be beyond control is absurd. In fact, a System Administrator has far more capability in accessing and controlling content instantly through the power of microprocessing than a traditional print publisher. Imagine- printing presses and operators with rolled up sleeves in an oil can environment- “Stop the Presses!” (Note that, in spite of older technology, there was a higher standard of care respecting the First Amendment.) Unfortunately, the sweeping immunity gave control of the precious amendment to online services.

To repeat- unceremoniously, Congress quietly overturned existing media law. It did something unthinkable to everything held dear by practitioners of the public’s information highways- it removed responsibility. Sound crazy? In truth, it merely encouraged them to use good judgement with the term ‘Good Samaritan’. There is no legal incentive to take action. Zeran v AOL would have never happened had AOL behaved like a ‘Good Samaritan’. The sin of Section 230 is that it removed responsibility and invited corruption. What cannot be stated enough is the attitude unleashed by the law and decision. A compromised, dumbed-down America is the result.

It should be noted for those thinking Section 230 is the reason for the growth of the Internet, the statute is limited to the United States. Nearly every country in the world concurs with this commentary in maintaining notice based liability. Congress and The Fourth Circuit made assumptions based upon theory, not fact. There is no evidence the Internet's development was slowed prior to Section 230. Quite the contrary. 

Other casualties of Section 230 and its aftermath include contentious editorial control. Of course, behemoth online businesses are not public utilities but are enterprises owned and operated by profit seekers, with a right to the content they control on the servers they own. They can do anything they want and can also be manipulated by political forces. Can control who has, and who does not have access. The problem is- they are monopolies. It is a choke hold on the First Amendment. Are you reading Teddy Roosevelt? The Internet can be so much better with more options.

 

 

 

Why hasn’t any of this been rectified? The answer is- a trillion dollar industry. The monopoly barons of the Internet enjoy the sweeping immunity gifted by an unwitting Congress and Fourth Circuit.

Another unintended consequence of irresponsibility is the cultivation of anonymity inviting a darker side of human behavior. This plague of provocateurs haunts a descending culture producing an atmosphere of anger. It is amazing how many, shielded by hidden identity, cannot resist jumping into a cauldron of divisive babel. If every posting on the Internet contained the real name of its author there would be more thoughtful and civilized communication. It is technically feasible.

The breakup of the “Town Square” into myopic channels where people sequester themselves to like-minded thought is narrowing the human experience and making too many one dimensional and intolerant. Preaching to it's own choir that 'God is on our side'. The lack of a sense of responsibility empowers this sociological condition. The effect of Section 230 enabled it.

sameness

Ask yourself a question. In the past twenty-five years has American culture become a happier community?

There is no question about the many wonderful accomplishments made possible by the Internet and the potential it holds. I know we were excited to introduce new breakthroughs and watch the wondrous response. I assure you none of us envisioned today's unhappiness. However, throughout history, unintended consequences have threatened the purpose of the enlightened. Cherish the First Amendment and be mindful of the time honored phrase- “To Abuse It Is To Lose It”.

More than twenty five years ago Congress took on trying to govern a new technology, in spite of knowing little about it. I did my best to raise the standard and history has increasingly placed me in a favorable light. Meanwhile, Section 230 has been discussed ever since, and for a good reason- it is fundamentally flawed and mistreats the First Amendment with toxic results.

This is not the only issue facing a troubled Internet landscape. The practice of "Innuendo-Deception". The usurpation of privacy. Security has become an ominous problem everywhere- personal, financial institutions, infrastructure, national security, espionage, ransom scenarios, the international theft of American assets. The serious loss in microprocessor production has exposed the United States to vulnerability. Consider the specter of cyber warfare. Hopefully, Congress will be more informed and better prepared than it was twenty-five years ago in dynamically dealing with digital technology. It owes the country.

I would welcome an opportunity to meet with Congress and share my knowledge and role in the development of digital technologies to assist in an effective solution to contemporary life’s challenges in the “Pursuit of Happiness”.


Kenneth Michael Zeran has enjoyed international success in both Fine Art and emerging technologies. He has successfully applied the element of creativity to technology with the powerful gift of originality.

He is responsible for advancing state of the art technologies into a national experience that has changed the culture.

He introduced digital technology in television with CBS in 1978. The nation was spellbound and it changed television forever.

The first practical use of Waveform Audio was developed in his studios. It is how sound is now used on computers and the Internet.

He produced one of the first High Definition Television productions with The Sony Corporation to introduce the world to the new standard.

He premiered Laser applications in network television in collaborating with Sapan Engineering, 3D Curved Animation with Digital Effects Inc., 'Motion Matting' with The New York Institute of Technology. Created the first computer based double system' Audio/Video Editor. Marketed by Adams-Smith it became a leading editor throughout the industry.

For more on his biography click HERE.

By Adroit Media

Copyright, 2021, Kenneth Zeran.

 

Zeran and Dali Portrait
 
Photo by Jovelle Tamayo for NPR